9911796707
TMI Blog2000 (4) TMI 829X X X X Extracts X X X X X X X X Extracts X X X X ..... e work-a-day world. But, as we shall presently see, the law, on account of recent judgments concerning the services of a probationer, is fairly well-settled and there is no cause for being confounded or bewildered. The perplexity which, at one time, surrounded the torrid question involved in this case has yielded to the clarity of reasons propounded by this Court from time to time in recent times to which a reference shall be made during the course of this discussion. The appellant was recruited on 1.10.1985 as a Constable in 34th Battalion, Pradeshik Armed Constabulary, U.P. under the U.P. Pradeshik Armed Constabulary Act, 1948. He completed his training on 6th of September, 1986 and was, thereafter, placed on probation for a period of two years. He completed his period of probation on 5th of September, 1988 but a year later, on 19th of July, 1989, his services were terminated by a simple notice in terms of Rule 3 of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975. The order of termination was challenged by the appellant before the U.P. Public Service Tribunal which, by its judgment dated 18.1.1993, allowed the claim petition and set aside the order da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on that the services of the appellant were terminated. The respondents admitted in the counter- affidavit that there was no adverse material against the appellant before the incident in question. The original records which were produced before the Tribunal and were scrutinised by it indicated that the order by which the services of the appellant were terminated was passed on account of his alleged involvement in the quarrel between the constables at the Ghat Varanasi Camp. The Tribunal has found as under:- The preliminary enquiry file No.Ja-2/89 relating to the petitioner and other constables of 34th Bn. P.A.C. Varanasi from page 21/34 to 22/33 dated 26.6.89 shows that the enquiry was conducted by Sri Kailash Chaube, Assistant Commandant, 34th Bn. P.A.C. Varanasi and in the preliminary enquiry report he concluded at pages 21/34 to 22/37 that the petitioner along with others had indulged in a misconduct of hurling blows and used filthy language to the superior officers of the Department and he was found guilty along with others for the said misconduct and misbehaviour. Thereafter on internal page 6 the impugned order of termination dated 19.7.89 was passed in respect of the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 68 SC 1210 ruled out the proposition of automatic confirmation on completion of the period of probation. This Court ruled that the `permanent' status can be acquired only by a specific order confirming the employee on the post held by him on probation. To the same effect is the decision in Partap Singh vs. U.T. of Chandigarh (1979) 4 SCC 263 = 1980 (1) SCR 487 = AIR 1980 SC 57. In Municipal Corporation, Raipur vs. Ashok Kumar Misra (1991) 3 SCC 325 = 1991 (2) SCR 320 = AIR 1991 SC 1402, the same principles were reiterated. In view of the above, the contention that the appellant had acquired `permanent' status cannot be accepted. His status was that of a probationer. Now, it is well-settled that the temporary Government servants or probationers are as much entitled to the protection of Article 311(2) of the Constitution as the permanent employees despite the fact that temporary government servants have no right to hold the post and their services are liable to be terminated at any time by giving them a month's notice without assigning any reason either in terms of the contract of service or under the relevant statutory rules regulating the terms and conditions of such se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Services (Classification, Control and Appeal) Rules if the enquiry was held for the limited purpose of finding out whether the employee was fit to be retained or not, the said enquiry would not make the order punitive as the enquiry could not be related to any misconduct of the employee. This view was reiterated in Jagdish Mitter vs. Union of India, AIR 1964 SC 449. In Madan Gopal vs. State of Punjab, AIR 1963 SC 531 = 1963 Supp.(3) SCR 716, the order by which the services of the employee were terminated was an order simpliciter in nature, which was innocuously worded, but it was held by this Court that the form of the order was not decisive and the Court could go behind that order to find out whether it was founded upon the misconduct of the employee. These cases, namely, State of Bihar vs. Gopi Kishore Prasad AIR 1960 SC 689; State of Orissa vs. Ram Narayan Das (1961) 1 SCR 606 = AIR 1961 SC 177; Madan Gopal vs. State of Punjab (1963) Supp. (3) SCR 716 = AIR 1963 SC 531; and Jagdish Mitter vs. Union of India AIR 1964 SC 449 were considered by this Court in Champaklal Chimanlal Shah vs. Union of India (1964) 5 SCR 190 = AIR 1964 SC 1854 where the services of the appellant, who was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S. Dhaba (1969) 3 SCC 603; State of Bihar vs. Shiva Bhikshuk Mishra (1970) 2 SCC 871 = 1971 (2) SCR 191 = AIR 1971 SC 1011; R.S. Sial vs. State of U.P. (1974) 3 SCR 754 = AIR 1974 SC 1317 = (1975) 3 SCC 111 and it was laid down that in order to attract the provisions of Article 311(2) it has to be seen whether the misconduct or negligence was a mere motive for the order of reversion or termination or whether it was the very foundation of that order. It was again reiterated that the form of the order was not conclusive of its true nature and the Court has to examine the entirety of circumstances preceding or attendant on the order of termination. To the same effect is the decision of this Court in State of U.P. vs. Sughar Singh (1974) 1 SCC 218 = 1974 (2) SCR 335 = AIR 1974 SC 423, which related to reversion and in which reliance was placed on two earlier decisions in Madhav Laxman Vaikunthe vs. State of Mysore AIR 1962 SC 8 = 1962 (1) SCR 886 and State of Bombay vs. F.A. Abraham AIR 1962 SC 794 = 1962 Supp. (2) SCR 92. It was, however, laid down that if the order visits the employee with penal consequences, the order would be punitive. It was for this reason that the order of rever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 311(2) having been sufficiently explained in Shamsher Singh's case (AIR 1974 SC 2192) (supra) it should no longer be possible to urge that Sughar Singh's case (supra) could give rise to some misapprehension of the law. Indeed, we do not think that the principles of law declared and applied so often have really changed. But the application of the same law to the different circumstances and facts of various cases which have come up to this Court could create the impression sometimes that there is some conflict between different decisions of this Court. Even where there appears to be some conflict, it would, we think, vanish when the ratio decidendi of each case is correctly understood. It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts. ( Emphasis supplied ) Termination simpliciter of a temporary Govt. servant on the ground of unsuitability does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s nothing to show that the termination order was made by way of punishment. In another decision which, incidentally, again is Nepal Singh vs. State of U.P. (1985) 1 SCC 56 = AIR 1985 SC 84 = (1985) 2 SCR 1, the Court held that where the services of a temporary Govt. servant are terminated on the ground that his reputation for corruption makes him unsuitable for retention in the service, the State, or for that matter, any statutory employer, must take great care when proceeding to terminate a career on the ground of unsuitability, to ensure that its order is founded on definable material, objectively assessed and relevant to the ground on which the termination is effected. It was observed that the Court will view with great disfavour any attempt to circumvent the requirement of Article 311(2). In Anoop Jaiswal vs. Govt. of India (1984) 2 SCC 369 = 1984 (2) SCR 453 = AIR 1984 SC 636, it was found on a consideration of the entire record that the real foundation for the order of discharge of the appellant- probationer was the alleged act of misconduct. This, it was observed, made the impugned order punitive in nature and was, therefore, held to be bad. Shesh Narain Awasthy vs. State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because a preliminary enquiry was held against a temporary Govt. servant, would not be a ground to hold that an order, otherwise innocuous on the face of it, by which the services were terminated, was punitive in nature. The decision in Nepal Singh vs. State of U.P. (1985) 1 SCC 56 = 1985 (2) SCR 1 = AIR 1985 SC 84 was held to be per incuriam as in that case, Champaklal's case (supra) was not considered, but the Court did observe that if on an overall assessment of the work and conduct of the employee the authority competent in that behalf to terminate the service, is satisfied that on account of the employee's general unsuitability and inefficiency or misconduct it would not be in the public interest to retain him in service, it may either terminate the services by an innocuous order or may proceed to take punitive action by holding a regular departmental enquiry. The Court, however, emphasised that the termination has to be in accordance with the terms and conditions of service regulated by relevant rules. In Radhey Shyam Gupta vs. U.P. State Agro Industries Corporation Ltd. Anr. JT 1998 (8) SC 585 = (1999) 2 SCC 21, which related to a probationer, the whole legal posi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of that enquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But, if there are allegations of misconduct and an enquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that enquiry, the order would be punitive in nature as the enquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of motive . Motive is the moving power which impels action for a definite result, or to put it differently, motive is that which incites or stimulates a person to do an act. An order terminating the services of an employee is an act done by the employer. What is that factor which impelled the employer to take this action. If it was the factor of general unsuitability of the employee for the post held by him, the action would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary enquiry is held behind his back to ascer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment. (2) In any case in which either during or at the end of the period of probation, the Superintendent of Police is of opinion that a recruit is unlikely to make a good police officer he may dispense with his services. Before, however, this is done the recruit must be supplied with specific complaints and grounds on which it is proposed to discharge him and then he should be called upon to show cause as to why he should not be discharged. The recruit must furnish his representation in writing and it will be duly considered by the Superintendent of Police before passing the orders of discharge. (3) Every order passed by a Superintendent under sub-paragraph (2) above shall, subject to the control of the Deputy Inspector General, be final. Where, therefore, the services of a probationer are proposed to be terminated and a particular procedure is prescribed by the Regulations for that purpose, then the termination has to be brought about in that manner. The probationer-constable has to be informed of the grounds on which his services are proposed to be terminated and he is required to explain his position. The reply is to be considered by the Superintendent of Police so that if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the purpose of a notice under r.55-B is to ascertain, after considering the explanation which a probationer may give, whether he should be retained or not and in such a case it would be sufficient compliance with that rule if the grounds on which the probationer is considered unsuitable for retention are communicated to him and any explanation given by him with respect to those ground is duly considered before an order is passed. ( Emphasis supplied ) In two other cases, namely, State of Bihar vs. Gopi Kishore Prasad (supra) and Samsher Singh vs. State of Punjab (supra), the question of termination of services of a probationer was considered and it was laid down that the form of the order was not conclusive and the court could go behind the order to find out the real foundation of that order. Radhey Shyam Gupta vs. U.P. State Agro Industries Corporation Ltd. Anr. JT 1998 (8) SC 585, which has been decided by Brother Jagannadha Rao, J., was also a case where the services of a probationer were terminated. As we have already seen above, there has been total non-compliance with the provisions of Para 541 of the U.P. Police Regulations and services of the appellant were terminate ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
